It is determined whether the employers can benefit from rights such as severance pay, notice pay, and sometimes whether they will be liable for certain obligations such as penal clauses, depending on the reasons for termination. It is of particular importance for the dismissed worker to be able to benefit from these rights in return for years of work.
If the employer has a just cause for termination but terminates without relying on it, the employee may benefit from some rights such as severance, notice indemnity, and reemployment lawsuit. This is where the importance of the reason for the termination of the employment contract emerges. The worker should know not only the rightful termination reasons for himself, but also the employer’s rightful termination reasons, so that if he does not encounter a termination based on these reasons and if there is no justified termination, seniority, notice, reemployment lawsuit, etc. know that the claim of their rights is possible.
For this reason, we have in our article 4857 p. We will discuss the justified termination reasons that are valid for employers within the scope of the Labor Law and listed in the Law.
Article 25 of the Law regulates the employer’s justifiable grounds for termination. In case of existence of one of these termination reasons, the employer may terminate the employment contract based on these justified reasons, whether the term is definite or indefinite.
IS THE EMPLOYER BOUND BY TERMINATION?
The rule of dependance due to termination is valid for both the employee[1] and the employer. For this reason, the employer cannot change the reason for termination on which he is based during the termination of the contract, and if he changes it, it is not taken into account.
In the decision of the 7th H.D. of the Supreme Court on the subject; “In the concrete incident, the plaintiff had an argument with another worker with whom he worked at the defendant workplace because he sold a product more expensive than the label price, and when the argument grew and he did not leave the aisle even though he wanted to leave the aisle, according to the statement of the witness, who was the witness of the incident, he lost his control and “… He insulted another employee of the employer by saying f… Off, and after a report was taken and his defense was received, it was reported by the employer that he was terminated with notice and payment of compensation pursuant to Article 17 of the Law No. 4857, according to the termination notice signed on 26.10.2010. The employer is bound to the employee by the reason for the termination. For this reason, the employer’s defense that there is a just cause for termination and that a valid termination notice has been given in error while the rightful termination will be made cannot be relied upon. The claimant’s severance and notice pay must be paid. Although the plaintiff’s claims for severance and notice pay should be accepted, the court’s decision to reject the claims for severance and notice compensation on the ground that the plaintiff’s employment contract was terminated with just cause by changing the grounds for termination of the defendant’s employment contract, although it was not within its jurisdiction, is wrong and the reason for the reversal.” Has been decided by Supreme Court.
IF THE EMPLOYER HAS A LEGAL REASON FOR TERMINATION, CAN TERMINATION BE DONE IMMEDIATELY?
It should also be noted that the employer may terminate the employment contract immediately, without the need to comply with the termination notice period listed in Article 17 of the Labor Law, if there are justifiable reasons for termination. In this respect, it differs from temporary termination. In fact, for a number of justified reasons, the necessity of exercising the right of termination within a certain period has been put forward. Regulation on the subject 4857 p. It is clearly stated in Article 26 of the Labor Law, titled “Time to exercise the right of immediate termination”. We will talk about this situation in the rest of our topic.
Let us now list the justifiable grounds for termination listed in the law, one by one.
I-Health Causes
- a) In the event that the worker has an illness or becomes disabled due to his own intention, untidy life or addiction to alcohol, the absenteeism that will arise for this reason lasts more than three working days in a row or five working days in a month,
- b) In case it is determined by the Health Board that the illness of the worker is incurable and there is harm in working at the workplace,
Except for the reasons listed in sub-paragraph (a), the employee’s right to terminate the employment contract without notification for the employer in cases such as illness, accident, birth and pregnancy; It arises after the stated cases exceed the notification periods in Article 17, according to the working period of the worker at the workplace, six weeks. In cases of birth and pregnancy, this period starts at the end of the period specified in Article 74. However, there is no wage for the periods when the worker cannot go to work due to the suspension of the employment contract.
II-Situations that do not comply with the rules of morality and goodwill and likewise:
In the presence of this reason for termination, the right of termination must be exercised within a certain period of time. According to this; The authority to terminate the contract granted to the employer based on situations that do not comply with the rules of morality and goodwill shown in Article 25 cannot be exercised after six working days have passed from the day the employer learned that the employee has acted in such a manner, and in any case, one year after the realization of the act.
It should be emphasized here that, even if the termination is based on a just cause, if it is made after the expiry of the stipulated time, it will result in the provisions and consequences of the unjust termination. The period in question is not a statute of limitations, but a period of disqualification, and the judge must observe it ex officio. In addition, there is no question of stopping or interrupting this period.
- a) The employee misleads the employer by claiming that he does not have the qualifications or conditions required for one of the essential points of this contract at the time of the employment contract, or by saying false information or statements,
- b) The employee’s words or acts that would harm the honor of the employer or one of their family members, or making unfounded denunciations and accusations against the employer,
- c) If the employee sexually harasses another employee of the employer,
- d) The employee’s harassment of the employer or one of his family members or another employee of the employer, coming to the workplace drunk or taking drugs, or using these substances in the workplace,
- e) The employee’s behavior that does not comply with accuracy and loyalty, such as abusing the employer’s trust, stealing, revealing the employer’s professional secrets,
- f) If the worker commits a crime in the workplace, which is punishable by imprisonment for more than seven days and the penalty is not postponed,
- g) If the worker does not continue to work for two consecutive working days, or twice in a month- the working day after any holiday-, or for three working days in a month, without taking permission from the employer or without a just cause,
- h) The worker’s insistence on not performing the duties he is responsible for, despite being reminded of it,
ı) The worker’s own will or negligence endanger the safety of the work, causing damage and loss to the machines, installations or other goods and materials that are the property of the workplace or that are not the property of the workplace, to a degree that cannot be paid with the amount of the thirty-day wage,
III- COMPELLING REASONS
The emergence of a compelling reason that prevents the worker from working at the workplace for more than one week,
In the decision of the 7th H.D. of the Supreme Court on the subject; “In subparagraph (III) of Article 25 of the Labor Law No. 4857, it is explained that the employer has the right to terminate immediately if a compelling reason arises that prevents the employee from working at the workplace for more than one week.
The reasons that prevent the worker from working must occur in the worker’s environment. The reasons arising from the workplace and preventing work are not included in this article. For example, closure of the workplace is not considered a compelling reason. However, situations such as interruption of transportation due to natural events such as floods, snow, earthquakes, and quarantine due to epidemics are compelling reasons.
Coercive/compelling reasons arising from the workplace are not within the scope of the mentioned article, but are the reasons that give the employee the right to terminate immediately, as regulated in article 24/III of the same Law.
Pursuant to Article 40 of the Law No. 4857, half wage is paid for the <times not worked> within the scope of Article 25/III of the Law due to compelling reasons. In the event that the employee’s employment contract is terminated for compelling reasons pursuant to subparagraph 25/III, the employer has no obligations to comply with the notification requirement or to pay notice. However, severance pay must be paid in accordance with Article 14 of the Law No. 1475.” has been decided by Supreme Court[3]
In the decision of the 9th H.D. of the Supreme Court on the subject; “ In his defense, the defendant argued that a civil war broke out in Libya, where the workplace is located, and that the employment contract was necessarily terminated due to domestic retaliation and the state of war. and in this case, it is clear that the worker will be entitled to severance pay, but since he or she does not have the right to notice pay, the notice pay request will have to be rejected. It is inaccurate for the court to impose an erroneous assessment and a notice indemnity.” has been decided by Supreme Court.
In another decision of the 9th H.D. of the Supreme Court; “In the concrete case, while the plaintiff was working as a workplace doctor, the Tekirdağ Medical Chamber presidency canceled the work permit due to the fact that the number of workers for whom the claimant worked as workplace doctor in more than one workplace exceeded 100. It is not possible for the plaintiff to work as a workplace doctor in the workplace after the said cancellation process. The aforementioned reason, which develops depending on the worker and prevents the worker from working at the workplace, is the 25/III of the Labor Law No. 4857. should be considered within the scope of the article. Although the defendant employer’s termination is based on a compelling reason, the severance pay is acceptable, but the claimant worker does not have the right to demand notice indemnity. While the court should reject the request for notice compensation, its acceptance in written form is wrong.” Has been decided by Supreme Court.[5]
IV- IF THE EMPLOYEE IS DETAINED OR ARRESTED, THE ABSENCE EXCEEDS THE NOTIFICATIN PERIOD IN ARTICLE 17,
In the decision of the 9th H.D. of the Supreme Court on the subject; “In the event that the employee’s absence exceeds the notification period mentioned in Article 17 of the same Law, following the detention or arrest of the employee in subparagraph (IV) of Article 25 of the Labor Law No. 4857, the employer has the right to terminate immediately. Although the employer who terminates the employment contract pursuant to the mentioned article 25/IV of the Law, is required to pay severance pay, since the employer is not obliged to comply with the notification condition and not pay notice in this case, the rejection of the notice pay request should be rejected, but its acceptance was wrong and required to cancel it.” Has been decided by Supreme Court [6]
The worker may apply to file a reemployment lawsuit with the allegation that the termination is not in accordance with the reasons set forth in the above paragraphs.
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[1] Yargıtay 7. H.D.`nin 2014/435 E. , 2014/8566 k. sayılı ve 17.04.2017 tarihli kararı. Konuya ilişkin detaylı bilgi için “ İşverenin İşçiye Hakareti-Haklı Fesih ” başlıklı yazımıza bakılabilir.
[2] 2013/19425 E. , 2014/3950 K. sayılı ve 17.02.2014 tarihli kararı.
[3] 2013/3824 E. , 2013/10929 K. sayılı ve 10.06.2013 tarihli kararı.
[4] 2015/7545 E. , 2017/1631 K. sayılı ve 13.02.2017 tarihli kararı.
[5] 2011/13656 E. , 2013/17831 k. sayılı ve 11.06.2013 tarihli kararı.
[6] 2014/31477 E. , 2016/3737 K. sayılı ve 23.02.2016 tarihli kararı.
